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A Most Unvirtuous Circle

Submitted on June 1, 2015

There are laws and rules on the books that mandate identification of the real sponsors of ads—but they go un-implemented when it comes to the political genre

It’s shaping up as a great political year ahead—if you are a billionaire with an axe to grind or a broadcast or cable operator. In recent years, special interests and ideologues of both the right and the left have dumped billions of dollars of unaccountable advertising onto the airwaves and cables that we rely on for our news and information. In fact, by most estimates, the majority of campaign money nowadays goes into advertising. It’s great for broadcast and cable. When I was a Commissioner at the FCC and I would ask these industry execs how business was doing, they always had an extra-wide grin as we were entering a new election cycle. For many of them, these ads comprised their largest revenue stream. It’s a virtuous circle for them and the billionaires, but not so virtuous for the rest of us—or for our democracy.

Mostly these ads are anonymous, fact-free, and negative. They add nothing to the quality of the nation’s pre-election dialogue and, in fact, have wrought incalculable damage upon it. And it’s all done without accountability. When viewers want to find out who is sponsoring a particular ad, it’s a futile search when they look to the banner at the bottom of the screen, only to find something like: “Paid for by Citizens for the Red, White, and Blue”, or “Citizens for Purple Mountain Majesties and Amber Waves of Grain”. Nothing else; no hint of who put up the money; no clue as to the real agenda behind the message. That red-white-and-blue flag waver might well be a chemical company dumping toxic materials into our rivers and streams, but there is no way for a viewer or listener to know that.

Little-known fact: voters are hearing more about campaigns from these anonymous ads than they are from legitimate news sources. A recent study of the 2014 campaign in Philadelphia, for example, found a 45:1 ratio of political ads to political news stories! Think about that. As big broadcasters and cable have decimated their newsrooms and substituted mind-numbing infotainment for hard news, they have enabled Big Money special interests to dominate our campaign discourse. We all know these ads play fast-and-loose with the truth, but the “news” seldom calls them to account or digs down to identify who these advertisers really are. Our political dialogue is in the hands of the anonymous.

What’s going on here is not just bad policy. It’s unlawful.

What’s going on here is not just bad policy. It’s unlawful. There are laws and rules on the books that mandate identification of the real sponsors of ads (both commercial and political)—but they go un-implemented when it comes to the political genre. Failure to enforce the law is corrupting our politics—and goodness knows our politics don’t need any more corrupting!

To be technical for a paragraph: Section 317 of the Communications Act (47 U.S.C. § 317) requires the on-air identification of the sponsors of all advertisements, both commercial and political. This goes back to the very formulation of the Communications Act of 1934. Explaining the rules written to implement the statute, the FCC stipulated that all ads must “fully and fairly disclose the true identity of the person or persons, or corporation, or committee, association or other unincorporated group, or other entity” paying for them. Audiences “are entitled to know by whom they are being persuaded,” the Commission pronounced long ago.

I don’t see any escape hatches there, do you? I don’t see anything permitting vested interests to hide behind sham front-groups labeling themselves with all sorts of pretty, patriotic-sounding names. “True identity” means exactly what it says. It means voters have a clear, unambiguous right to know who is trying to influence them. Democracy is about holding power accountable. If we don’t even know whom to hold accountable, how do we hope to govern ourselves successfully?

Dark-money ads are sponsored by moneyed interests from both the left and the right, so there is no reason for partisanship here

And let’s get one thing straight right here: this is not a partisan issue outside of Washington, DC. Inside the Beltway most everything is polarized and partisan, but out across America that’s just not true. There was an important committee vote in the House of Representatives the other day on a bill pushing the FCC to enforce its Section 317 rules mentioned above. Every GOP member present voted against it. How I wish those representatives would go back home and raise this issue with their constituents, because from what I have seen where I have traveled, Republican voters are no more enamored with these nonsensical ads than are Democrats. Nobody likes having the wool pulled over his or her eyes. This is not a political party thing; it’s an American thing. These dark-money ads are sponsored by moneyed interests from both the left and the right, so there is no reason for partisanship here.

Four years ago, the Media Access Project filed a petition calling upon the FCC to carry out its obligation. That petition is still pending. New petitions have been filed. But if the FCC doesn’t act soon, we will have to endure a 2016 election cycle replete with even more of these democracy-distorting ads.

The FCC should announce its intention to update its rules and to establish a date in 2015 for Section 317 to go into effect for political ads

The solution is at hand. The FCC should announce its intention to update its rules (something the official, non-partisan Government Accountability Office strongly recommended in 2013) and to establish a date in 2015 for Section 317 to go into effect for political ads. No new law is required; Congress doesn’t have to do a thing (although I welcome the recent introduction of legislation in both the House and the Senate that would require the FCC to act). Recent years have seen special interests devise all sorts of PACs, Super PACs, and a multitude of dark money devices to hide their activities and their backers, and that is why the rules need to be brought up-to-date. The essential point is that the FCC can do this on its own, within 60 or 90 or at most 120 days, giving all parties a chance to weigh in on how best to formulate the sponsorship information and to make sure there is no evasion.

The FCC has had a great year. Its Open Internet (“net neutrality”) action was historic; its skepticism about the Comcast-TWC merger was a major factor in derailing that monopoly deal; its enabling of more community-built broadband will stimulate critically-needed communications infrastructure; its expansion of the E-Rate program for schools and libraries and the Lifeline Program for low-income individuals serves the same objective. The way I see it, the next item on Chairman Tom Wheeler’s bucket list ought to be making sure the FCC is meeting its statutory obligation to tell us who it is that is actually behind the tens of thousands of political ads that are running our democratic discourse off the rails. It’s at the top of my bucket list, and I’m looking for company, Tom.